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Re H (Children: Findings of Fact) [2021] EWCA Civ 319

Appeal against findings that the father sexually abused his daughter and step-daughter. Detailed examination of the trial judge’s reasoning. Appeal dismissed.

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Background

The case concerned four siblings. X was the father of 3 of the children. He spent significant parts of the decade in prison.  

D, born 2010, made allegations of sexual abuse against her father, X, in 2017 but retracted them soon after. At that time, the SW and police had doubts about her evidence and no proceedings were brought. In December 2019, following two incidents of non-sexual domestic abuse, all four children were removed to foster care.  During supervised contact on 24 December 2019, D had a conversation with MGM in which she mentioned abuse by X. On 25 December 2019, D made new allegations of sexual abuse to the foster carer.   On 1 and 7 January 2020, R, born 2013, made allegations to the foster carer of sexual abuse by X (her step-father).  Both children gave ABE interviews.  In her ABE, D said the 2017 allegations had been true.  X denied the allegations.  

Fact Finding 

It had been determined pre-trial that D and R would not give evidence. A 'hybrid' fact finding hearing took place. HHJ Cove read 4927 pages of materials and watched the ABE interviews at least three times. Edis LJ observes that the judge conducted a conspicuously careful and thorough hearing: she is to be congratulated for ensuring the witnesses were fairly heard and tested. 

HHJ Cove was required to determine 11 allegations: she made findings that X had sexually abused D and R in 2019; and made findings of aggressive behaviour by X in December 2019, including of physically assaulting mother and D.  The sexual abuse allegations were based entirely on the evidence of D and R. D made detailed allegations about X's aggressive behaviour, which the parents initially disputed. However, D's account was true and was corroborated by independent evidence, including CCTV. 

HHJ did not find D's allegations that X sexually abused her prior to 2017 to be proved.  Nor did she find that the mother had been present when X abuse D and R, which both children had alleged, or that the mother had failed to protect them from sexual abuse.  She found that the mother had failed to protect the children from domestic abuse and that the mother's difficulties had led her to neglect the children and to fail properly to supervise their time with X, knowing he was aggressive and violent.

Appeal

X appealed the findings of sexual abuse only.  He contended that the judge had failed to give proper weight to a number of factors and had not 'addressed' certain matters.  These included D's retraction in 2017, that D may have learnt about sexual behaviour from pornography, possible collaboration or influence of D upon R, D's reliability/credibility, R's credibility as she alleged her younger brother had been abused but he made no such complaint, and R's consistency.   

Edis LJ gives the lead judgment.  He sets out the background and the role of the appellate court in factual appeals. The court will not lightly interfere with findings of fact. He observes that a challenged based upon suggested insufficiency of reasons for reaching a factual conclusion is not an easy one to sustain.  He refers to Re O (A Child: adequacy of reasons) [2021] EWCA Civ 149 in which the court recently restated the necessity for reasoned conclusions; and Re JB (A Child: sexual abuse allegations) [2021] EWCA Civ 46, in which the court reviewed the guidance on the conduct of ABE interviews.

HHJ Cove's judgment is examined in detail and significant sections are extracted.  Her review of the evidence was comprehensive and mentioned almost all the matters that X contended she had failed to address or to give sufficient weight. 

The judge's findings were presented as a series of conclusions rather than a reasoned process, in which arguments are addressed and accepted or rejected. Much of the thought process is not set out expressly in the findings but is implicitly there.  The judgment would have been clearer if the conclusions included short passages explaining why factual observations made in the judgment lead to the results stated. 

X's best point was in relation to the 2017 allegations, which had been retracted and seemed inherently implausible.  HHJ Cove set out her observations that the 2017 allegations were inconsistent and she could not on the balance of probabilities find that they were true. However, she did not find that they were lies.  Edis LJ notes that a few additional sentences of explanation in the judgment would have assisted greatly.   

The principal issue was whether the account given by D and R in their ABE interviews were reliable. It is a pure question of fact. When the judge found herself unable to accept the parents' answers for reasons she explained, it was open to her to accept the truth of the ABE interviews if she found them persuasive. 

Conclusions

The function of the reasons is to explain how the decision has been arrived at, not to list the obviously unimportant things which have not influenced the outcome. Where there is a substantial point or piece of evidence which points away from the judge's finding, the judgment should address it and explain the approach to it.  There is no harm in a judge failing to mention a submission which has struck them as so obviously unsustainable that it does not deserve an answer.  However, it is incumbent on a judge who has reached a particular conclusion to identify the best points which have been made in opposition to it, and to explain why they have not prevailed.

While the judge plainly had the father's case firmly in mind and the reasons for rejecting it can be found in the judgment, tackling the case more directly would have made the judgment clearer and less susceptible to challenge. 

Edis LJ identifies points that the judge should have addressed specifically.  However, it was not sufficient to reverse the judge's findings. Appeal dismissed. 


Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case summary, please see BAILII